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Goods in transit within the Mercosur and its treatment

One of the major trading benchmarks within the Mercosur is located in Uruguay: the port of Montevideo. It is a natural port, suitable for large which operates year-round, 24 hours a day. Its geographic conditions are excellent and a wide variety of services are available to users, covering a total area of 110 hectares.

This has rendered it one of the main destinations of goods in transit within the region, in addition to the fact that it is a “free port”, where there are no time restrictions regarding storage of goods, and activities such as warehousing, repackaging, classification, grouping, separation, consolidation and fractioning of goods, among others, are allowed.

Goods in transit are subject to special regulations as regards tax benefits; but regarding the trademark issues in question (distinguishing between legitimate and illegitimate goods) they are governed by Uruguayan Law No. 17.011 on Trademarks.

The containers holding the goods in transit should not be opened; however, Customs authorities are entitled to stop or open the same should they suspect that they contain counterfeited products. For such purposes, there is a Customs Surveillance Department whose officers are specialized in detecting counterfeit products.

Suspicion could be raised based on several factors, such as: products appearing to be counterfeited, the price declared for the same is very low compared to the nature of the products they contain, or the company they derive from or where they will be delivered is being investigated.

When a container with allegedly counterfeit products is opened, customs officers contact “ex officio” the Industrial Property Agent who has identified itself before Customs as the representative of the trademark that has been allegedly infringed. The Agent is required to appear before the Customs Office to verify the authenticity of the product.

If it turns to be that they are effectively counterfeit products, the interested party may file a formal complaint before the corresponding Criminal Court.

The following actions will be taken before the Criminal Court of First Instance: the complaint will be ratified in writing, a ratification and amendment hearing will be held, the accused party and related third parties will be summoned and an Expert Report issued by the National Police Bureau will be requested. The National Police Bureau will confirm in its report whether they are counterfeit products or not.

Should it be determined that they are counterfeit products, the Prosecutor’s Office will be required to authorize the destruction of the same, a court order will authorize it and prosecute those found guilty.

If no actions are taken, the container will continue its way to its final destination.

Based on the foregoing, and although there is no official procedure prior to the court action, it is extremely important for the trademarks to be under surveillance at Customs, to keep the customs officers informed regarding the characteristics of the original products, trademark devices, and any other information which may be useful at the time of identifying a legitimate product from a counterfeited one.

In this way it is possible to stop counterfeit products before the same reach the country of destination, bearing in mind that Uruguay is a relevant country concerning transit of goods, thus minimizing the negative effects of trademark counterfeiting, and the damages caused by the same to the lawful owners of the trademarks and their consumers.

Carmen Sánchez-Puelles